Unpublished Disposition, 865 F.2d 1271 (9th Cir. 1987)

MEMORANDUM^* 

Anthony Lioumis appeals from the judgment entered following his conviction for conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. § 846 (1982).

Lioumis contends the judgment should be reversed because: (1) Wharton's Rule bars prosecution for conspiracy to possess cocaine with intent to distribute as a separate crime from possession of cocaine with intent to distribute, and (2) the prosecution presented insufficient evidence to establish a conspiracy. We disagree and affirm.

Special Agent Benny L. Rincon, of the California Department of Justice Bureau of Narcotic Enforcement testified to the following facts: Special Agent Rincon, posing as a prospective purchaser of cocaine, was introduced to Lioumis on March 19, 1987 by an informant. Lioumis told Special Agent Rincon that he could sell multiple kilogram quantities of cocaine at $21,500 per kilo. No sale was made on this day.

On March 20, 1987, Lioumis agreed to furnish Special Agent Rincon with three kilos of cocaine at $21,000 per kilo. Lioumis agreed to have the cocaine delivered to a hotel room in Diamond Bar. The cocaine was not delivered. Special Agent Rincon refused to accompany Lioumis to Lakewood, California to obtain the cocaine from another source.

On March 23, 1987, Special Agent Rincon met Lioumis at a restaurant in Irvine. Special Agent Rincon was accompanied by Agent Manuel Martinez of the Drug Enforcement Administration, who was also posing as a trafficker in narcotics. Lioumis advised Special Agent Rincon that the delivery and sale of the three kilograms of cocaine would occur on the following day. Special Agent Rincon asked Lioumis to try to obtain four kilograms of cocaine. Special Agent Rincon explained that the fourth kilogram was for Agent Martinez. Lioumis agreed to try to obtain the amount requested.

On March 24, 1987, Lioumis called Special Agent Rincon and arranged a meeting at a restaurant in Orange, California. At the meeting, Rincon was again accompanied by Agent Martinez. Lioumis stated he was uncomfortable discussing the cocaine transaction in Martinez' presence. The three then drove to a Red Onion Restaurant where Martinez left them. Lioumis and Special Agent Rincon proceeded to a nearby pay phone. After Lioumis made a phone call, he advised Special Agent Rincon that the four kilos were ready to be picked up in Los Angeles.

En route to Los Angeles, Rincon stated that his connection's wife, Diane Levy, was holding the cocaine for them because Mr. Levy was away from home engaged in a cocaine transaction.

Because heavy traffic caused a delay, Lioumis called Diane Levy to assure her that they were on their way. On the way to the Levy residence, Lioumis asked to count the money. Special Agent Rincon told him that he only had $63,000 for three kilos because Martinez had the other $21,000 for the fourth kilo.

Upon arriving at the Levy residence, Lioumis asked Special Agent Rincon to park on a side street. Lioumis then asked Special Agent Rincon for the money. Special Agent Rincon stated that he wanted to see the cocaine before turning over the money. Lioumis stated he would ask Diane Levy for her approval.

Approximately ten minutes later, Lioumis returned to the car. He reported that Diane Levy had obtained the four kilograms of cocaine. Lioumis also told Special Agent Rincon that he had made a phone call to Mr. Levy. Lioumis claimed that Mr. Levy was very upset because Special Agent Rincon now wanted only three kilos. Lioumis also stated that the cocaine could not be brought out to the car unless the money was first taken into the house and delivered to Diane Levy. Rincon refused to hand over the money. Special Agent Rincon then gave a prearranged signal to surveillance officers. The police officers entered the Levy residence after knocking and announcing their identity. They observed Diane Levy descending a stairway clutching a black nylon bag in her hand. The bag contained four kilos of cocaine.

II

Lioumis was acquitted of knowingly and intentionally possessing cocaine with intent to distribute four kilograms in violation of 21 U.S.C. Section 841(a) (1) (1982). He was convicted on a separate count charging him with conspiracy to possess cocaine with the intent to distribute in violation of 21 U.S.C. Section 846 (1982). Lioumis argues that since a sale of cocaine requires that there be an agreement between at least two people, he cannot be convicted for conspiracy as a separate crime under Wharton's Rule.

We must decide whether the district court was correct in holding that Wharton's Rule does not bar Lioumis' conviction on the conspiracy count. The applicability of Wharton's Rule is a question of law. Accordingly, we must review this contention independently without deference to the trial judge's conclusion. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir. 1984) (en banc), cert. denied 469 U.S. 824, ("Questions of law are reviewed under the non-deferential, de novo standard.")

Lioumis contends that the government's case "established only a conspiracy between the appellant as seller [of cocaine] and Agent Rincon as buyer." He argues that under Wharton's Rule, this is insufficient to convict him for conspiracy. We disagree.

Wharton's Rule provides that " [a]n agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission." Iannelli v. United States, 420 U.S. 770, 773-74 n. 5 (1975) (quoting 1 R. Anderson, Wharton's Criminal Law and Procedure Sec. 89, p. 191 (1957)). "The classic Wharton's Rule offenses--adultery, incest, bigamy, duelling--are crimes that are characterized by the general congruence of the agreement and the completed substantive offense." Iannelli, 420 U.S. at 782; United States v. Rueter, 536 F.2d 296, 298 (9th Cir. 1976).

By definition, Wharton's Rule does not apply in cases where the substantive crime can be committed by a single person. Iannelli, 420 U.S. 770, 785; United States v. Ohlson, 552 F.2d 1347, 1349 (9th Cir. 1977) (per curiam). Accordingly, the rule is inapplicable to the crime of possession with intent to distribute because it can be committed by a single person. United States v. Rueter, 536 F.2d 296, 298 (9th Cir. 1976).

Lioumis contends that the Supreme Court applied Wharton's Rule in United States v. Katz, 271 U.S. 354 (1926), to facts undistinguishable from those presented in the instant matter. We disagree. In Katz, the substantive crime that was the object of the conspiracy was the sale of whiskey by one defendant to the other. Id. at 355. This sale required an agreement between the buyer and the seller. In contrast, the substantive crime that was the object of Lioumis' conspiracy was the possession of cocaine with intent to distribute. This offense does not require proof of an agreement with another person.

The district court did not err in concluding that Wharton's Rule was not a bar to Lioumis' conspiracy conviction.

III

Lioumis contends that the prosecution failed to present sufficient evidence to prove that he conspired with Diane Levy to possess cocaine for sale. We disagree.

The essential elements of a conspiracy are "1) An agreement to accomplish an illegal objective, 2) coupled with one or more overt acts in furtherance of the illegal purpose, and 3) the requisite intent necessary to commit the underlying offense." United States v. Pemberton, 853 F.2d 730, 733 (9th Cir. 1988) (per curiam) (citing United States v. Indelicato, 800 F.2d 1482, 1483 (9th Cir. 1986)). "The agreement need not be explicit, and it may be inferred from circumstantial evidence." Pemberton, 853 F.2d at 733.

We must decide " 'whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Kiriki, 756 F.2d 1449, 1453 (9th Cir. 1985) (citation omitted).

The undisputed facts summarized above are sufficient to satisfy a rational trier of fact that Lioumis agreed with Diane Levy and her husband to provide Special Agent Rincon with four kilos of cocaine. Lioumis contends, however, that the evidence is insufficient to show that Diane Levy agreed to enter the charged conspiracy because she refused to deliver the cocaine to Special Agent Rincon unless she received payment in advance. He relies on our decision in United States v. Melchor-Lopez, 627 F.2d 886 (9th Cir. 1980) to support this contention. His reliance on Melchor-Lopez is misplaced.

In Melchor-Lopez, the defendants appealed from their conviction for conspiracy to possess with intent to distribute heroin and cocaine. Id. at 887. The alleged conspiracy involved Salvatorre Rina and appellants Humberto Melchor-Lopez and Gregory Kommatas. Rina attempted to act as an intermediary in bringing together Melchor-Lopez, as supplier of heroin and cocaine, and Kommatas, as purchaser. Id. at 888. Rina dealt with each of these persons separately. Rina told Melchor-Lopez that the first delivery had to occur in the United States. Melchor-Lopez insisted that it occur in Mexico. Id. The disagreement was never resolved. Melchor-Lopez never met with or spoke to Kommatas. Moreover, Kommatas never agreed to purchase any controlled substance through Rina. Id. at 892. Thus, in Melchor-Lopez, there was never an agreement to carry out an illegal act. Id.

In the instant case, the undisputed facts show that Lioumis and Diane Levy agreed to possess cocaine for distribution to Special Agent Rincon. The lack of agreement between Diane Levy and Special Agent Rincon for the sale of the cocaine is irrelevant. "The focus of our judicial inquiry must be on the relationship between the co-conspirators and whether they were acting in concert." United States v. Sharif, 817 F.2d 1375, 1378 (9th Cir. 1987). The evidence shows that Lioumis and Diane Levy indeed acted in concert. Proof of a conspiracy does not require evidence that its illegal object be accomplished. Melchor-Lopez, 627 F.2d at 890.

The judgment is AFFIRMED.